Freedom of expression and speech: an absolute right? (Part 1)

This is a cross post from Pulse Weekly

By: Yasmeen Aftab Ali

Part#1

Media today has become a powerful tool all over the world and in Pakistan expressing views and conveying news. In Pakistan, media has gone from one strength to another since 2002. More specifically, from the year government allowed private TV channels to make a debut. Owing to a low literacy rate, television is viewed and enjoyed by people across the board. Although a different set of laws govern the print medium of communication and also in some cases overlap laws governing electronic media like Article 19 and 19A Constitution of Pakistan, (Freedom of Speech/Access to Information) Article 204 (Contempt of Court) and Defamation others governing the latter also include the PEMRA Ordinance 2002, PEMRA Ordinance (Amendments) 2007, Code of Conduct for Media Broadcasters/Cable TV Operators aiming to regulate the working of electronic media. Violations nonetheless occur. Not once, not twice, but repeatedly! This is with reference to electronic medium of communication in particular. We need to see the bigger picture; we need to understand the concept of freedom of expression and speech. We need to understand that nowhere in the world is it absolute. We need to understand the need to respect the law.

My paper shared here is drawn from my book, “A Comparative Analysis of Media & Media Laws in Pakistan,” published ending 2011 and later accepted by Harvard Law College Library as a reference book on the subject.

Freedom of expression is often confused with freedom of speech. Freedom of speech is a part of freedom of expression. The latter is an umbrella term that covers many a form of expression that includes the freedom of speech, but only as a part thereof. It is deemed to be a basic human right, that includes; freedom of thought, freedom of press, freedom to express oneself in arts, poetry, architecture, crafts, lifestyles, dressing, eating, culture, music, sculptures so on and so forth.

“Freedom of speech may be defined as the right to express one’s ideas and opinions freely through speech, writing and other forms of communication but without deliberately causing harm to others’ character and/or reputation by false or misleading statements. Freedom of press is part of freedom of expression.” (Definition by BusinessDictionary.Com) Freedom of expression is as a basic ingredient or a cornerstone to a functioning democracy. Freedom of expression is a term giving an umbrella to many types of freedoms including most importantly, freedom of speech ;of the press, of association, of assembly and petition – all protected by the First Amendment of the US Constitution. The relevant portion of the First Amendment of the United States Constitution written in 1791 reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

A well- known quote, largely attributed to Voltaire, is originally of Evelyn Beatrice Hall, who wrote under the pen name of S.G Tallentyre, known for her biography of Voltaire titled, “The Friends of Voltaire” Hall wrote in that biography, “I disapprove of what you say, but I will defend to the death your right to say it” is the tenet on which the very principle of right to freedom of expression rests. This quote is often misattributed by some to be from Voltaire himself. Noam Chomsky, correctly stated, “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.”

On December 10th, 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. Article 19 of the Declaration states, “ Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” However, is this right truly inviolate? Does this allow hate speech? Racism? Breach against the security of a country? Contempt of Court?Defamation? The list is long and the question demands a hard look at the question itself. A balance must be struck here. A line must be drawn.

Every nation has the right to constitute laws to deal with new challenges. Laws are for societies. As societies change, so must the laws to meet the ongoing challenges of time. Interestingly, USA has passed The Trespass Bill, in August 2011. The Bill creates a “bubble” zone around certain government officials, dignitaries and areas, using a broad meaning, giving room to interpretation by the prosecutor. John Glaser states, “Starting with making it illegal to trespass on the grounds of the White House, the grounds or buildings included as off-limits even cover those that the President – or whatever other official protected by the Secret Service – is residing temporarily. It would even include a peaceful protest outside a presidential candidate’s concession speech, for example.” He goes on to say, in the same article, “The government already has inordinate ability to crush free speech, silence protesters, and arrest civilians peacefully assembling, but this legislation would mark the beginning of the end of the First Amendment.” Obama signed the Bill in March 2012 that essentially makes it a federal offence to create disturbance at certain political events. (“Trespass Bill Would Violate Peaceful Assembly Rights”: by John Glaser published February 28th 2012 in AntiWar.COM)

I am discussing here some of the broadly accepted limitations worldwide on the freedom of expression and speech:

Limitations on Freedom of Expression

Let us see some of these limitations that create a bar against the right of unbridled exercise of the right to freedom of expression.

I would first like to discuss Hate Speech here as a justified bar on the right to freedom of expression. “Hate speech is a communication that carries no meaning other than the expression of hatred for some group, especially in circumstances in which the communication is likely to provoke violence. It is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women.” In a piece carried by Defence Blog of Pakistan, by David Ben Gurion in 1948 during Israel’s Independence Speech, “The world Zionist movement should not be neglectful of the dangers of Pakistan to it. And Pakistan now should be its first target, for this ideological State is a threat to our existence.” (1948 Speech by David Ben Gurion) Geert Wilders, a popular Dutch MP, in 2008, released a 17 minutes film against Islam. Titled Fitna, the film demonstrates how the Koran encourages acts of terrorism, anti-Semitism, violence against women, homosexuals and infidels. “I don’t hate Muslims. I hate Islam”. (Published The Guardian (The Observer) UK, by Ian Traynor, Sunday 17 February 2008) He had shown his film in the House of Lords in UK, sparking angry scenes of violence. So hate speech cannot be promoted under the guise of freedom of expression and speech.

Another limitation to the exercise of the right of freedom of expression is defamation. Generally described as a false statement against the reputation of another in verbal (slander) or recorded form (libel). It is vilification, aimed to damage the reputation about whom made.

Slander is verbal communication, which by virtue of being verbal is transitory in nature. Libel on the other hand has a permanent form. It can be in writing, broadcast or in any from where it may be referred back. Slander can be more difficult to prove as compared to libel. Witnesses to a verbal communication can be coerced, pressurized, threatened and bought. This however, does not mean that slander cases are not filed or not settled. Slander will be described as: “Speaking of base and defamatory words tending to prejudice another in his reputation, community standing, office, trade, business or means of livelihood.” (Black’s Law Dictionary Sixth Edition. Centennial Edition (1891-1991) Pg 1388)

During my research I came across a particularly interesting one that I would like to share. Las Vegas surgeon Mark Kabins was convicted of a felony in federal court, agreed to pay $800,000 to settle a slander lawsuit filed against him by an anesthesiologist. The allegations in both the civil and criminal cases stem from the treatment of Melodie Simon, who became a paraplegic after Kabins and Thalgott performed spine surgery on her in August 2000. The lawsuit accuses the defendants of making “false and defamatory statements concerning Burkhead’s ability to competently practice medicine.” The malpractice case settled for $2.3 million, but prosecutors argued it was worth much more. After attorney fees and costs were deducted, Simon received $1.3 million. Kabins’ plea agreement, which allowed him to avoid prison time, requires him to pay her another $3.5 million.” (Article published in Las Vegas Review-Journal by Carri Geer Thevenot published 7th March 2010) Libel is the second kind of defamation. Here, the ingredients of libel are (a)Words stated must be defamatory(b)it must be in form of a permanent record that can be referred back to, and(c)it must refer to the person of the plaintiff(complainant).Black’s Law Dictionary defines libel as “A method of defamation expressed by print, writing, pictures or signs. In its most general sense, any publication that is injurious to the reputation of another. A false and unprivileged publication in writing of defamatory material.” (Sixth Edition, Centennial Edition (1891-1991) Pg 915)

In a benchmark case, in 1934, Princess Irena Youssoupoff, niece of Russian Tsar Nicholas II, sued the Metro-Goldwyn Pictures. In the picture by the studio, “Rasputin and the Empress”, it was shown that the princess fell for the ‘mad monk’ once he set out to seduce her. She was awarded US$125,000 at that time, the biggest libel judgment in England. Monson V Tussauds case that again is a milestone in the history of libel, took place in 1894. The Ardlamont Murder took place in Argyll, Scotland in 1893. It led to two cases. The HM Advocate Vs Monson and in 1894, a case of defamation by Monson against the Madam Tussauds. John Monson was acquitted of the charge of the murder of Cecil Hambrough. Tussauds in the meanwhile had put up a waxen effigy of John Monson in its gallery of criminals. Monson sued Madam Tussauds for libel. Though Monson won the case and the lowest possible defamation costs were awarded, it did establish a new principle. The principle was “libel by innuendo”.

Innuendo will generally mean, “An indirect or subtle reference, especially one made maliciously or indicating criticism or disapproval.” (The Free Dictionary by Farlex) Libel is actionable per se . Claim of damages for publication of defamatory statement: “While determining damages due regard has to be taken of following factors: (a)Nature of defamatory statement (b) conduct of person responsible for its publication(c)conduct of such person after issuance of notice and after institution of case (d)degree of care and caution exercised before publication of disputed statement. “(Majid Nizami Vs Sheikh Muhammad Rashid: PLJ 1997 Lahore 652=PLD 1996 Lahore 410).

Incitement to offence cannot be allowed in exercise of the right to freedom of expression. Incitement to offence is a real encouragement to commit a crime. It can be through persuasion, threat, advice, and direct help of any kind. The intention must be for the crime to be committed. A plea that the person encouraging the other to commit an offence did not know the act was an offence will not stand. Ignorance of law is no excuse. Anger words spoken by politicians on electronic media, which has a huge impact in a country like Pakistan, irresponsible journalism by anchor persons whose words carry weight with the public at large, can have a cascading effect. It can result in acts akin to incitement, even if the desire to result in that act was not there, on face of it.

Incitement can be public ie encouraging a group of people to take a particular action and private incitement, encouraging an individual to do a particular act. Incitement to genocide was an unknown term, when Streitcher and Hans Fritzsche were charged and judgment against them passed in 1946, the grounds were crimes against humanity. But were they to be charged today for the same offence, it will fall within the ambit of incitement to genocide. Incitement to genocide became a crime under International Law with passing of this epic judgment against both by the International Military Tribunal.

Julius Streitcher , founder, editor, of anti-Semetic weekly Magazine Der Strurmer, was found guilty of spreading hate propaganda. In many letters and articles that he wrote himself, Jewish people were portrayed as, “a parasite, an enemy, an evil doer, a disseminator of diseases”, and “swarms of locusts that must be exterminated completely.” The Tribunal found Streitcher guilty of incitement to genocide. The Tribunal judged that he “incited the German people to active persecution.” He was awarded death by hanging.” ((1946)22 Trial of Major German War Criminals p. 501) Hans Fitzsche was a senior official from the Ministry headed by Goebbel for Proper Enlightenment and Propaganda. He also headed the Radio Division from 1942. He was accused of having, “incited and encouraged the commission of War Crimes by deliberately falsifying news to arouse the German people those passions that led them to the commission of those atrocities.” Fitzsche was acquitted, the Tribunal having judged that, “…..his position and official duties were not sufficiently important……to infer that he took part in originating or formulating propaganda campaigns.” (Ibid)

Freedom of expression, like any other liberty, brings with itself a very heavy responsibility, on the shoulders of all of us exercising that right and in particular upon those who are placed in positions to influence policies, impact and form public opinion. At no stage, can we encourage criminal acts and then feign innocence or shrug off the responsibility that goes with freedom.

Whether incitement is against an individual person or a group which may be based on ethnic, racial or any other ground, it stands as limitation against the right to freedom of expression.

About the writer

Yasmeen Aftab Ali is a Lawyer and also holds a Master’s degree in Mass Communication. She has authored, “A Comparative Analysis of Media & Media Laws in Pakistan,” in 2011. She is a weekly Op-Ed Writer for ‘The Pakistan Today’ daily national newspaper published from Lahore and has been teaching in a private university for 9 years. She is known as the leading Media Laws specialist in Pakistan.

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